On July 9, 2021, the Ontario government announced that the province will be moving in to Step 3, the final stage of its 3-step reopening framework, as of 12:01 AM on July 16, 2021. This shift comes earlier than previously expected, as the province had previously indicated that there would be a minimum of 21 days between each respective step of reopening, which would have set July 21, 2021 as the earliest possible date for entry into Step 3. However, with key health indicators such as vaccination rates and ICU occupancy surpassing the targets set by the province for entry into Step 3, Ontario’s reopening will be moving forward ahead of schedule.
As with Steps 1 and 2, the new Step 3 rules were established under the newly amended O. Reg. 520/21: Rules for Areas at Stage 3 (the “Regulation”).
The transition into Step 3 will allow for the reopening of certain businesses that were required to remain closed in Steps 1 and 2, while introducing some loosened restrictions for certain sectors. Step 3 will also remove the requirement for employers to ensure that workers work remotely.
Businesses and Organizations Permitted to Open During Step 3
In our previous blogs covering the rules and regulations under Step 1 and Step 2, we provided a non-exhaustive list of businesses that were permitted to reopen to the public. Under Step 3, more businesses will be permitted to reopen, including, but not limited to:
- indoor recreational facilities, such as gyms;
- concert venues, cinemas, and theatres; and
- casinos, bingo halls, and gaming establishments.
Removal of Remote Work Requirement
The Regulation indicates that during Step 3, the requirement for employers to ensure that their employees work remotely (unless the nature of the employee’s work requires them to be on-site at the workplace) will be removed.
General Rules Applicable to All Employers During Step 3
Several of the general rules applicable to all Ontario employers in Steps 1 and 2 will continue to apply during Step 3, with certain limited exceptions. We have set out a non-exhaustive list of general rules that will continue to apply below.
Subject to limited exceptions, businesses or organizations that are open to the public during Step 3 are required to ensure that any person in the indoor area of the premises of the business or organization wears a mask or face covering in a manner that covers their mouth, nose, and chin.
Subject to capacity limits outlined within the Regulation, businesses that are open to the public during Step 3 must limit the number of members of the public in the place of business to whatever limit is necessary to allow said members of the public to maintain a physical distance of at least two metres from every other person in the business or facility.
Safety Plan Requirements
Businesses permitted to reopen during Step 3 will be required to prepare a safety plan that outlines the measures and procedures it has implemented or will implement to reduce the transmission of COVID-19 in its premises. Businesses that opened in Steps 1 or 2 are required to continue adhering to their existing safety plans.
Safety plans must include how the employer will meet the requirements in the Regulation, including by screening, physical distancing, masking, cleaning and disinfecting, screening, physical distancing, masks or face coverings, cleaning and disinfecting of surfaces and objects, the wearing of personal protective equipment and preventing and controlling crowding.
Safety plans for certain businesses and events that are reopening in Step 3 are subject to additional requirements, including that they must contain information as to how the business, place, or event will:
- prevent gatherings and crowds;
- ensure all public health measures are complied with; and
- mitigate the risks of any interactive activities, exhibits, or games that may be included in the business, place, or at the event.
Businesses that must adhere to these enhanced safety plan requirements include, but are not limited to:
- restaurants and bars;
- gyms and other indoor or outdoor sport and recreational facilities;
- concert venues, theaters, and cinemas; and
- casinos, bingo halls, and gaming establishments.
New and Loosened Sector-Specific Rules During Step 3
In addition to the general rules set out above, the Regulation also contains sector-specific rules and requirements that will apply to certain businesses and organizations permitted to reopen under Step 3. Several businesses that were permitted to open in Steps 1 and 2 will be subject to newly loosened sector-specific rules and requirements. The examples set out below are not exhaustive of the sectors to which sector-specific rules apply.
Under Step 3, the sector-specific rules that will apply to retailers include, but are not limited to:
- both essential and non-essential retailers will be limited to the capacity at which individuals inside the premises can maintain a physical distance of at least two metres from one another; and
- a sign stating the maximum capacity of the premises must be posted in a conspicuous location that is visible to the public.
Restaurants and Bars
Under Step 3, the sector-specific rules that apply to restaurants, bars, and food trucks include, but are not limited to:
- indoor dining may be provided with no limit on the number of patrons per table, though physical distancing and other restrictions are still in effect;
- a sign stating the maximum capacity of the premises must be posted in a conspicuous location that is visible to the public;
- subject to limited exceptions, the names and contact information of members of the public who enter the facility must be recorded, and said records must be maintained for at least one month; and
- food and drink establishments with dance floors, such as nightclubs, may reopen under a 25% capacity limit, up to a maximum of 250 people.
Gyms and Recreational Facilities
Under Step 3, several recreational sports and fitness facilities may open to both patrons and spectators. The sector-specific rules that apply to sports and fitness facilities include, but are not limited to:
- indoor sports and recreational facilities can operate at 50% capacity;
- sports and recreational facilities with a designated seating area for indoor spectators may operate at the lesser of 1,000 spectators or 50% of normal seating capacity;
- sports and recreational facilities with a designated seating area for outdoor spectators may operate at the lesser of 15,000 spectators or 75% of normal seating capacity;
- indoor and outdoor sports and recreational facilities without designated seating areas for spectators are subject to stricter capacity limits; and
- the names and contact information of members of the public who enter the facility must be recorded, and said records must be maintained for at least one month.
What Comes Next?
Step 3 represents the final stage of Ontario’s reopening plan. The province has indicated that Step 3 rules and regulations will remain in place for at least 21 days, meaning that the Regulation will remain in force until at least August 6, 2021. To move past Step 3, the province must also meet certain vaccination targets: 80% of Ontario’s eligible population will be required to receive at least one vaccine dose, and 70% will be required to receive both vaccine doses. Additionally, the province has indicated that no individual public health unit should have less than 70% of their eligible population fully vaccinated before Ontario moves past Step 3. As of July 12, 2021, 79% of adults in Ontario have received one dose of their COVID-19 vaccine, while 56% have been fully vaccinated.
The province has indicated that once Step 3 comes to an end, the majority of public health and workplace safety measures, including capacity limits for indoor and outdoor settings and limits for social gatherings, will be lifted. A small number of measures will remain in place, such as the requirement for businesses to maintain safety plans, as well as the wearing of masks indoors, until the Chief Medical Officer of Health indicates otherwise.
All Ontario employers should carefully review the Regulation in order to ensure that they comply with all applicable rules and requirements, including any that are specific to the sector in which their business or organization operates, particularly as employers resume on-site operations.
Employers permitted to reopen under Step 3 should always be mindful that public health measures, such as physical distancing and the wearing of masks indoors, must be followed by both patrons and employees. An employer’s obligation to ensure public health measures are being complied with extends not only to the business premises itself, but also to patrons who line up outside of the premises.
Given that COVID-19 related measures and requirements are subject to constant change, employers should continually monitor for changes to the applicable requirements and public health guidance.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.